A Revolution in Principle: Assessing the Impact of the New Evidentiary Exclusionary Rule

A Revolution in Principle: Assessing the impact of the new evidentiary exclusionary rule Claire Hamilton Maynooth University A Revolution in Principle: Assessing the impact of the new evidentiary exclusionary rule Claire Hamilton Maynooth University OCTOBER 2020 Acknowledgements Research is a collaborative effort and I owe much to my research assistant Shane Gough, who balanced a number of competing commitments in order to work conscientiously on the project in recent months. Prior to that I was ably assisted by Siobhan Buckley, doctoral student at Maynooth University, to whom thanks are also owed. Sincere thanks must also go to the criminal law practitioners who so generously gave of their time to complete the surveys and interviews, and provided us with invaluable insights into the rapidly evolving situation in relation to the implementation of the new exclusionary rule. I am particularly grateful to those respondents who referred me to other criminal law practitioners with experience in this area, including the Irish Criminal Bar Association and the Law Society Criminal Law Committee, who kindly agreed to circulate the survey to their members. Special mention should also be made here of Colm Scott-Byrne B.L., Procedural Rights Fellow at the Irish Council for Civil Liberties (ICCL), who was hugely helpful in spreading word about the survey and optimising practitioner engagement with it. We are tremendously grateful to the Irish Research Council who funded this project through their New Foundations scheme, and without which this research would not have been possible. The ICCL would like to acknowledge the support of the Trust for Civil Liberties, Human Rights and Fundamental Freedoms (ICLT) in this research project. The ICLT and ICCL work closely together. The work of the ICLT is to support human rights education and it advances this objective through funding and partnering on human rights education activities, by inter alia supporting the educational activities of ICCL. 4 Irish Council for Civil Liberties - October 2020 Contents Executive Summary 07 Introduction 08 Infringements of Constitutional Rights: The Exclusionary Rule 09 Introduction 09 Why do we have an exclusionary rule? 09 The origins of the Irish exclusionary rule 10 Was Kenny an absolute exclusionary rule? 11 From exclusion to inclusion: the JC decision 12 Criticism of JC 13 The exclusionary rule in comparative perspective 16 Conclusion 19 The Exclusionary Rule in practice after JC: Key Trends 20 Introduction 20 Inclusion or exclusion 20 Scope of the new rule 22 Workability of the new test 23 Inadvertence 25 Safeguards 27 Impact on guilty pleas 29 Impact on other procedural rights 30 Impact on policing and prosecutorial culture 32 A ‘Revolution in Principle?’ 34 Conclusion 35 Protecting Constitutional Rights into the Future: Conclusions and Recommendations 36 Introduction 36 Application of the test in People (DPP) v. JC 36 Impact on procedural rights 40 Impact on policing and prosecutorial culture 42 Conclusion 42 A Revolution in Principle: Assessing the impact of the new evidentiary exclusionary rule 5 The exclusionary rule provides that evidence that has been obtained in breach of constitutional rights should not be put before a judge or jury in a criminal trial. 6 Irish Council for Civil Liberties - October 2020 Executive Summary The exclusionary rule provides that evidence that has been obtained in breach of constitutional rights should not be put before a judge or jury in a criminal trial. The seminal case of DPP v. JC1 significantly changed the exclusionary rule in Ireland by introducing an exception based on ‘inadvertence’. The upshot is that evidence obtained unconstitutionally can now be admitted under a much more subjective standard where officers of the state claim to have no knowledge of the breach. This report presents the findings of research conducted by Professor Claire Hamilton of Maynooth University that aimed to examine the impact of the new rule five years on from the JC decision. These findings are based on 20 interviews and 60 surveys conducted with criminal law practitioners, both barristers and solicitors, on their experience of the exclusionary rule in practice since JC. The results throw up some troubling findings regarding its operation in practice, such as: the tendency to admit evidence, the complexity of the new test, the ineffectiveness of the safeguards contained within it, and the difficulty in challenging an assertion of inadvertence. One of the most significant findings from the survey and interviews is the overwhelmingly inclusionary manner in which it is being applied, in line with the predictions of many academics and the dissenting judges in JC. The questionnaires and interviews also raise significant concerns about the knock-on effect of JC on other due process rights such as the right to privacy, as well as on policing and prosecutorial standards more broadly. The public should insist on the full enjoyment of these rights, as well as to insist that those charged with their protection do not operate significantly below the standards expected of all ordinary citizens. By way of response to the research findings, ICCL has made a number of recommendations that for ease of reference are listed below. To fully understand the findings and recommendations the report should be read in full. Recommendations Given that the test set out in JC appears to do little to constrain a trial judge from exercising his/her discretion in favour of the admissibility of evidence, ICCL notes the dicta in JC whereby the appellate courts will correct > any imbalance that has arisen, and provide a ‘robust’ response where necessary. In line with case law in other jurisdictions, relevant factors in any reformulation of the test might include: the importance of the right breached, the bad faith of the police, and the nature and quality of the evidence. ICCL recommends that clarification should be provided by the appellate courts on the scope of the new exclusionary rule and whether it applies beyond the search warrant context. If it is extended to all constitutional rights, then guidance should be provided on the weight to be accorded to, and the importance of, the particular > constitutional right affected. Practitioners should not be afraid to challenge application of the JC principles in arrest, detention and other scenarios as they may not be fit for purpose to deal with the issues that arise for the constitutional rights engaged in such scenarios. Given that the safeguards set out in JC appear to do little to protect against wilful abuse of constitutional rights, ICCL recommends that the courts provide further guidance as to how both systematic violations of rights > and recklessness/gross negligence should be assessed by trial judges. This should include guidance on the presumption against the admission of evidence obtained unconstitutionally, so as to give it substance in practice. Given the concerns expressed about the workability of the test in practice, ICCL recommends further clarification > on the key concept of ‘inadvertence’ and how it may be assessed by the trial judge, together with further guidance on the operation of the two-stage test in practice. ICCL recommends that the Minister for Justice makes regulations to bring Irish surveillance laws in line with European standards. In this regard, ICCL notes developments in other jurisdictions where evidential rules have > been diluted or evaded in such a manner as to facilitate the violation of an accused’s privacy rights, and expresses its hope that such a situation would not arise here. ICCL believes that it is imperative that Irish law continues to operate a robust exclusionary rule as a form of accountability that is crucial to a functioning democracy. If the price of liberty is constant vigilance, then the courts > should be vigilant to ensure that the pendulum does not swing too far in favour of the inclusion of evidence at all costs. 1 [2017] 1 IR 417. A Revolution in Principle: Assessing the impact of the new evidentiary exclusionary rule 7 Introduction The exclusionary rule provides that evidence that has been obtained in breach of constitutional rights should not be put before a judge or jury in a criminal trial. In April 2015, in the decision of People (DPP) v. JC,2 the Supreme Court introduced dramatic changes to the exclusionary rule in Ireland. By a slim majority (4-3), it overhauled the exclusionary rule in relation to improperly obtained evidence that had been in operation in this jurisdiction for 25 years by introducing an exception based on ‘inadvertence’. The upshot is that evidence obtained unconstitutionally can now be admitted where officers of the State claim to have no knowledge of the breach (the so-called ‘green garda’ or ‘good faith’ exception). The decision has been variously described as a ‘revolution in principle’,3 the ‘wrong move on evidence’4 and as ‘the most astounding judgment ever handed down by an Irish court’.5 These comments are telling in terms of the profound implications the decision will have for criminal justice in this jurisdiction, particularly its role in suppressing evidence in order to discourage future illegal acts by gardaí and thus ensuring that proper standards are adhered to in criminal investigations. Its relaxation comes at a time that is pivotal for policing in Ireland and should be considered against research published by ICCL suggesting a serious gap in human rights compliance in the treatment of people in Garda detention, among other areas.6 Despite the critical importance of the JC decision, academics and NGOs working in this area find themselves largely in the dark as to its impact: what is the scope of the new rule? How is it being applied by the courts? How is it interacting with other procedural rights? There is a lack of clarity in relation to many aspects of the JC judgment and a dearth of appellate decisions, owing perhaps to disincentives contained within the JC decision itself.

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